Michael D. Cicchini

I think everyone has watched or heard of the series "Making a Murderer" that Netflix released in 2015. Steven Avery had been released from prison after severing quite a bit of time for a crime that he supposedly didn't commit. He was waiting for a big payday from the county and city that he was previously arrested in.
Then on October 31, 2005, Teresa Halbach went out to his families salvage yard to take some photos of a vehicle to list in the "Auto Trader" and was never seen from again. We all know what supposedly happened to her but who was the real killer?
I believe there are clans like the Avery's in a lot of rural towns and on the outskirts of the cities. They all pretty much stay to themselves and they have their share of troubles, domestic violence, etc. They are normally on government assistance, undereducated and when something happens the other folks around tend to point blame their way. They barely skate by financially, but just because of their standing in the community trouble finds them or they find trouble it's hard to say.
That said, what happened to Brendan Dassy who happened to be the nephew of Steven Avery is a complete miscarriage of justice. I admit I was losing my mind when I first starting reading this book, I didn't know if I was going to be able to finish it because of the role-playing and false promises that started with the first interviewers O'Neill and Baldwin who interviewed him from the back seat of a patrol car after they apprehended him while getting off the school bus to walk home. Then on to Wiegert and Fassbender's unlawful interrogation of young Dassy at his high school. I found myself getting so keyed up that I would have probably admitted to being involved. They badgered him for hours and made promises that they had no intention of keeping. You are not allowed to interrogate a minor without a parent present at any time. That is the fastest way to get a case thrown out in my jurisdiction, you can not even ask them a question in any official capacity. But these guys just kept at him until I wanted to toss my Kindle out the window, I think if they accused him of being Spiderman he would have agreed to it.
I could go on and on about what all was wrong with what they did to this young man. He may not have been the sharpest knife in the drawer but he was definitely trying to please these investigators. They definitely used that to their advantage. Which is the lowest of the lot, the poor boy didn't have a chance.
I was appalled that they kept asking him if he wanted a soda or something to eat during while dogpiling him. I was even more outraged when I read why they kept doing that, it's unbelievable. They have his mother come to the station and he confesses that he had indeed done the most horrific acts that can be done to a woman alongside his uncle Steve. I'll be damned if they didn't offer her sandwich when she's leaving the station. ARG!!! Her answer is no thank you, I've lost my appetite. I could just picture one of those guys sputtering his offer to her while one of his cheeks are bulging out like hamsters crammed full of half of a ham sandwich.
I have to admit I've never heard of some of these tactics that this writer brings forth. I've set in many interviews I've dealt with adults never young people, we had a card that we had to pull out and read from when issuing the Miranda Warning even if we knew it by heart. It's called covering all the bases.
This is a great read for anyone who is interested in the legal process, I hope that the changes that the author writes about will help stop a lot of these false confessions. It may be too late to help some but let's hope that in the future these "get this case closed" group of investigators and prosecutors curb that attitude. It's so unfair, if you are poor, uneducated then oh, well, let's get you a public defender who has a caseload of 500 and see when he can fit you into his schedule!!! I personally do not see how those investigator's sleep at night. I couldn't sleep well after I read this book. I had to wait until I could regroup to write this review without giving too much away.
Disclosure: I would like to thank the publisher and NetGalley for providing me with a copy of this e-galley in exchange for my honest opinion, the opinions expressed above are my own.… (más)

Ask any trial attorney and they'll likely tell you that the trial is the easiest part of a case. That's because all the investigation, research, and preparation is complete. Equally important, the issues to be presented have been narrowed as motions and hearings before trial shaped and settled often significant procedural and substantive legal questions. Add in the bench conferences and in chambers hearings that occur during trial and some of what may most affect a trial’s outcome occurs out of sight and hearing of the jury.

In pointing out that this occurred in the Steven Avery case, the subject of Netflix's popular Making a Murderer documentary series, Wisconsin criminal defense attorney Michael D. Cicchini examines various substantive and procedural laws, rules and court rulings that shaped the case long before the jury heard any testimony. While not part of the defense or appellate teams, his book, Convicting Avery: The Bizarre Laws and Broken System behind 'Making a Murderer' looks at the legal landscape of the Avery case. And while it necessarily is limited to Wisconsin law, where the trial occurred, its critique applies to almost all court systems.

Some of what Convicting Avery examines is already a subject of debate and discussion; other items have a much lower profile, if any. In the former category is the eyewitness identification that sent Avery to prison for 18 years for a rape DNA later established he didn't commit. At that trial, the victim pointed out Avery as the perpetrator. Yet the jury heard 16 witnesses who said he was nowhere near the crime. The book traces the law enforcement actions that contributed to his erroneous identification in court. Even the Wisconsin Supreme Court would later call eyewitness testimony "often hopelessly unreliable" and say erroneous eyewitness identification is "the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined."

Arguably more pertinent and much less known is the case law courts apply during a case. The examples in Convicting Avery have two different, yet often related, themes. One is the language used by statutes, rules and courts. Another is that once a jury reaches a decision, courts make it difficult to overturn a conviction.

A prime example of language issues is a word that permeates the law, "reasonable." Many criminal statutes consider whether a person’s actions were reasonable or unreasonable. Trial courts assess whether law enforcement’s actions were reasonable. Appellate courts often evaluate whether what a trial court did was reasonable or the reasonable effects of the actions. And the Wisconsin and federal constitutions ban only "unreasonable" searches and seizures.

Cicchini believes reasonable is the "most dreaded word" for criminal defense attorneys. "When the defense lawyer sees this word as part of a legal test or standard, he knows his client's ship is sunk," he writes. "The word reasonable is so vague and flexible that, when placed in even the most inept judicial hands, any law enforcement action can be justified after the fact." Avery saw the malleability of the word more than once.

When new DNA evidence was obtained after his rape conviction, Avery sought a new trial so a jury could hear that evidence. Exculpatory DNA results certainly appear to fulfill the requirement that it must be "reasonably probable" the new evidence would produce a different result. Yet in affirming the denial of Avery's motion, the Wisconsin Court of Appeals said reasonableness must be shown by "clear and convincing evidence," a legal standard considerably higher than "reasonable." And reasonableness played a major factor in his murder trial when the judge allowed items seized in the sixth search of Avery's home, a search that on its face seemed to violate the rules governing reasonable searches and seizures, to go into evidence.

Other court-made rules played roles in Avery's murder trial. Avery wanted to present a third-party defense; in other words, that some other person(s) killed Teresa Halbach. Yet to do so, he had to show the third party's motive, even though that is not an element of a murder charge, and their opportunity to commit the crime. Moreover, defendants are required to present evidence "to directly connect" the third person to the crime. Thus, while the state can convict someone on circumstantial evidence, the bar is much higher for a defendant who believes someone else committed the crime for which they are charged.

A similar situation can arise in the context of Wisconsin's preliminary hearings, the proceeding in which a judge determines if there is sufficient evidence to bind a defendant over for trial. Yet the prosecutor need not even show that its evidence meets the lesser preponderance of the evidence standard used in civil cases. Instead, the state need only show "probable cause," all that is needed to obtain a search warrant. Moreover, under Wisconsin case law, the truthfulness of witnesses at a preliminary hearing isn't relevant, only whether the evidence the state puts on shows its theory of the case is "plausible." That also means a defendant can’t call a witness at the hearing to contradict facts presented by a prosecution witness because such testimony goes to credibility, not plausibility.

Convicting Avery examines several other elements of procedural and substantive criminal law that impact trials behind the scenes, from allowing the introduction of junk science to manipulation of interrogations to the ethical obligations of both prosecutors and defense counsel. Yet Cicchini doesn't just take pot shots at the Avery case or Wisconsin's legal system. He suggests substantive reforms regarding the third-party defense and Miranda warnings. Still, Cicchini recognizes the difficulty of substantive reform, noting that it "rarely happens because it is the rational or right thing to do.". Rather,it tends to occur only when lawmakers "are motivated to ride the emotional wave of a single, high-profile injustice that has captured the public's attention."

While built around a particular case, the issues raised in Convicting Avery apply to the criminal justice system as a whole. Opposing arguments certainly exist but Cicchini makes clear he is viewing this from the perspective of a criminal defense attorney. Regardless of one's personal opinions, the book provides a considered insider's view of parts of the criminal justice system the public rarely sees.

(Originally posted at A Progressive on the Prairie.)… (más)